Thursday, April 29, 2010

The International Rule of Law

It is true that government does not rule society; however, government does provide the framework under which society operates. This framework may be succinctly described by the “Rule of Law.” Political philosopher FA Hayek describes this term in The Road to Serfdom as meaning “Government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.” This ideal is present in legal systems all over the world.

The Constitution in the United States clearly serves this role. First, Articles I – III enumerate the powers the federal government may exercise. Second, the Bill of Rights prevents the government’s excessive intrusion upon the autonomy of its citizens. Citizens may then act within their appropriate spheres, understanding to what degree the government may exercise over authority over their private lives. For example, under the 2nd Amendment an individual has the right to bear arms (based upon District of Columbia v Heller), but that individual may also have their property seized by the government under the principle of eminent domain described in the 5th Amendment. The clear delineation of government authority versus individual autonomy allows each of us to effectively exercise our liberty.

Other countries’ legal systems serve a similar role. For example, while the United Kingdom has no written constitution, its system of common law provides for precedent to guide and restrict the authority with which the central government may act. French civil law, based largely upon the Napoleonic Code, operates on the principle of comprehensively gathering all precedents of French law into one accessible, rather than monolithic, entity. Even religious law may serve to guide a populace and create specific spheres of governance. Sharia law, practiced by Islamic nations like Iran and Saudi Arabia, provides for a council of legal scholars, or the ulama, to interpret law and issue declarations based upon consensus and religious documents like the Quran.

We see common trends in each of these legal systems. For example, the reliance of the ulama upon consensus would include consideration of past decisions in a manner much like English common law. Similarly, French codification has been borrowed by the United States on both the statewide and national levels (as in the Federal Code). Despite geographical and cultural differences, countries share the most effective legal innovations to govern and guide their constituencies.

As globalization continues, this process will only intensify. Today, we see a move toward international law, whether it is the recent passage of the Lisbon Treaty in the EU or the International Criminal Court. It remains to be seen how effective these institutions will prove in the long-term; however, they represent an extension of the process of borrowing and adapting legal systems in order to create a more effective framework for governance. The Rule of Law continues to adapt to a changing world.

1 comment:

  1. Nice site, very informative. I like to read this.,it is very helpful in my part for my criminal law studies.